The Nation They Died to Save 



AN ADDRESS 



DELIVERED BY 



EUGENE G. HAY 



At Summit, N. J., May 30th, 1912 



Under the form of Government created by 
THE Constitution and the existing machinery 

FOR ITS administration, THE PEOPLE CAN CONTROL 



\})l ^^^ 






American Democracy. 



Only two great governments have existed among men 
which came into existence at a given time with a writ- 
ten constitution. All others have been the work of 
evolution, and the charter of their liberties the i>atch- 
work of the centuries. The first was the Hebrew Com- 
monwealth, which was organized on Mount Sinai with 
the Ten Commandments, written upon tables of stone, 
as its fundamental law. The second was the American 
Republic, with its Declaration of Independence and 
its Federal Constitution as the concrete statement of 
the rights, liberties, and powers of those who compose it. 

The great genius who organized and established the 
Hebrew Commonwealth was inspired of God, and it 
may be said of that government that it has been the 
storehouse of wisdom and knowledge to which all nations 
have gone. History records the existence of no gov- 
ernment among civilized men that has not borrowed 
from this great Commonwealth. The builders of our 
Nation borrowed liberally of the wisdom and knowledge 
of this inspired people, but the central thought which 
forms the essence of modern democracy was inspired by 
the New Dispensation which went from Galilee out 
among the children of men. 

It has been well said that the philosophy of history 
can be understood only by one who is at least two 
generations removed from the men and events with 
which it deals. Time must have healed the wounds of 
party conflict and lifted from the arena of public 
events that mist and cloud of partisanship through 



which things may be seen but indistinctly. This mist 
has yet scarcely lifted from the great Civil War, and 
the outlines of the mighty forces which have produced 
the unexampled material advance and progress of the 
American Kepublic since that era may be seen but 
dimly. The events, however, of the beginnings of the 
Eepublic, and the fundamental principles upon which 
it rests, stand out distinctly and are easily understood. 
The central thought which underlies our government, 
the thought that pervades every line of the Declaration 
of Independence, the thought, the growth and develop- 
ment of which made that Declaration possible, is, that 
the inalienable possession of man is his right to 
determine by whom and how he shall be governed. 
Take from the Declaration of Independence the thought 
that the people are the ultimate repository of all political 
power, and it becomes idle words without meaning. 
The root of it all is that the individual is the unit of 
power, and the preservation of individual rights the 
highest function of government; that the individual is 
not made for, or to be governed for the good of the 
State, but that the State is the creation of the individual, 
for his benefit; that personal rights are inalienable; 
and that the State has just such powers as the individual 
surrenders to it. Of his rights the individual surrenders 
to the State just so much as may be necessary for the 
protection of life, liberty, and property, and the man- 
agement of an orderly community. Out of this have been 
evolved the two basic principles of modern democracy: 
that government rests upon the consent of the governed, 
and that the majority shall control. These two principles 
must stand together. 



THE DECLARATION OF INDEPENDENCE. 

The Declaration of Independence is short and may 
easily be divided into four jiarts, and its tremendous im- 
portance, not only at the time when it was adopted by 
Congress but for all time, is more easily understood by 
making this division: 

First, It contains a statement of principles upon 
which the Colonial Congress based its action in declar- 
ing the independence of the Colonies. 

Second, An argument in support of these principles, 
and the action which the colonists proposed to take. 

Third, A statement of grievances or wrongs which 
the people had suffered at the hands of the government 
from which they deliberately determined to abjure alle- 
giance. 

Fourth, The formal Declaration of Independence. 

In the first subdivision two comprehensive principles 
of government are laid down, and these two principles 
are the very source of the American Republic. They are : 

First, That governments are instituted among men to 
secure to men their inalienable rights of life, liberty, and 
the pursuit of happiness. 

Second, That governments derive their just powers 
from the consent of the governed, and that the people 
have the right to alter or abolish a government which 
is destructive of these ends. 

There is, however, in the statement of grievances, a 
thought of tremendous importance. It is "He (referring 
to George III) has dissolved Representative Houses re- 
peatedly for opposing with manly firmness his invasions 
of the rights of the people. He has refused for a long 
time after such dissolution to cause others to be elected, 
whereby the Legislative Powers, incapable of annihila- 
tion, have returned to the people at large for their exer- 
cise." No single statement ever made at any time has 
penetrated so deep into the true principles of popular 



government as this. Every reform in government, from 
the rudest Barbaric Ages, has proceeded along parlia- 
mentary lines. The leading thought in all such reforms 
Las been that in some sort of a legislative body should 
be vested the initiative ; that every change in the govern- 
ment of the people must originate in the Legislature. 
As this reform has progressed still further we find grow- 
ing the idea that the Legislature represents the people. 
This is followed by the doctrine that, since the Legisla- 
ture represents the people, the people must select the 
Legislature; hence the legislative power is incapable of 
annihilation, but whenever destroyed it returns to be 
exercised by the people in whom, and in whom alone, it 
ultimately reposes. This thought stands as the everlast- 
ing bulwark of popular government. If the power or 
right to initiate cannot be annihilated, republican insti- 
tutions, when once established, will endure until a ma- 
jority of the people shall otherwise decree, or shall, 
through avarice, idleness, or the love of luxury, become 
indifferent to their rights and neglectful of their duties. 
With this as the recognized fundamental principle 
of government, the founders^ of the American Republic 
framed the Constitution, having as their sole purpose the 
creation of the framework of a government in the 
operation of all of whose functions that principle was 
ever present. They divided that government into three 
several departments, each independent within its sphere, 
yet co-ordinate with each other in such way that the 
ultimate control of the people governed over those tem- 
porarily charged with the duty of administering those 
several departments, was never lost. 



CRITICAL PERIOD. 

The most crucial and critical time for the American 
Republic was the years that elapsed between the close 
of the Revolutionary War and the final establishment 
of Constitutional government. The dangers which then 



threatened grew out of the jealousy of the people of 
their personal rights — a fear they entertained that in 
any form of government which might be adojjted they 
would unwittingly surrender some of those rights of civil 
and religious liberty for which they had fought, and 
the protection of which they believed was the highest 
office, and should be made the chief object of such gov- 
ernment as they should adopt. They knew that the 
political history of the nations recorded two dangerous 
facts: that political leadership fostered ambition, and 
that ambition fed on power. Their want of confidence 
in their leaders was not personal, but was encouraged 
by almost every page of the history of other nations, 
and they were determined that they would not readily 
yield assent to any form of government, lest, in their 
haste, their rights would not be securely guarded. In 
this feeling, never yielding and growing stronger through 
the years, there was the gravest danger that no stable 
government could be established, and that naught but 
anarchy would follow independence. Rut out of it 
order came, and the strongest, freest, best government 
of the world was established. 



POLITICAL rOWER INHERENT IN THE PEOrLE. 

While the doctrine, that all political power is in- 
herent in the people and may only be exercised upon 
their consent, was not new, to make it the foundation 
stone of a great nation was revolutionary, and a radical 
departure from the hereditary governments of Europe. 
Lincoln said, "No man is good enough to govern another 
man without that other man's consent." All other theo- 
ries of government, in their final analysis, are self- 
assumed superiority and self-assumed power. The seduc- 
tive selfishness of this doctrine persuaded Csesar to cross 
the Rubicon, but it failed to tempt Cincinnatus; yielding 
to its temptation, the First Consul became the Emperor 
Napoleon, and died in banishment and misery; resisting 



6 

it, George Washington became the demigod of liberty 
and died the most loved man in all the world. It 
means the consolidation, rather than the diffusion, of 
power. Through the selfish ambitions of men, consoli- 
dated power always leads to oppression; diffused power 
operates as a check upon these selfish ambitions and 
preserves the liberties of the people. That no man is 
good enough to govern another man without that other's 
consent will be true until selfishness shall be eliminated 
from mankind, and in that day governments among men 
will cease to be a necessity. It was to best promote, 
and embalm forever in the institutions of an enduring 
government, this great fundamental principle that the 
makers of our Constitution aimed. Is the principle itself 
worth while, and did the Fathers succeed in giving it 
perennial expression in the Constitution, is a question 
which in these days is brought home to us, and one 
which we should at all times be willing to investigate 
and answer. 



THE GOVERNMENT CREATED BY THE CONSTITUTION. 

The Legislative Department. 

Our government is essentially a parliamentary gov- 
ernment. In the Constitution the Legislative Depart- 
ment is given the first place. I mean by this it is first 
enumerated. Besides this, it has the power of initiative 
relative to all laws and all public matters, the sole 
power of determining national policy, and the sole power 
of appropriating money. Not one dollar of public money 
can be expended except upon express appropriation by 
Congress. It has full control over the Executive and 
the Judicial Departments, in that it may withhold ap- 
propriations. It has the further power over the Judici- 
ary in that it makes, and can unmake, all courts inferior 
to the Supreme Court, which is created by the Con- 
stitution; and as to the Supreme Court it is given by 



the Constitution the power to extend, limit, or cut off 
its appellate jurisdiction. This, however, is a power 
that Congress has never exercised, or at least never 
except in the most limited degree, and in a way to in- 
crease, rather than curtail the power of the Judiciary, 
Congress could, however, under this power, completely 
destroy the most important functions of the Supreme 
Court. But Congress, coming directly from the people, 
would never do this except upon the most positive and 
direct mandate from the people. The history of our 
country, however, records no instance when Congress 
has failed to respond to the clear and positive mandate 
of the people. As we proceed further, it will be seen 
that, through Congress, tlie people also have at all times 
complete control of the Executive. A Congress in which 
is vested all power of initiative, and which must return 
biennially to the people for a new lease of power, forms 
the surest possible guaranty that the rights and liber- 
ties of the people cannot be infringed for any length 
of time, except by the people's consent. 



The Executive Department. 

The executive power of our government is vested 
by the Constitution solely in the President. While this 
power is very great, it is confined by the Constitution 
to a very limited field. First: He is the Commander- 
in-Chief of the Army and Navy of the United States 
and of the Militia of the several States when called 
into the service of the United States. Congress, how- 
ever, decides what that army and navy shall consist of, 
how it shall be organized, officered, and paid, and not 
one dollar can be expended in this branch of the service 
except upon an express appropriation by Congress. It 
will therefore be seen that, while the President's actual 
control over our army and navy is absolute, the potential 
control is always with Congress. The President has 
power to pardon all offences committed against the 



8 

United States, except in case of impeachment. Over 
this power there is no control by Congress. He has a 
joint power with the Senate to make treaties, and with 
the advice and consent of the Senate to appoint all 
administrative and judicial officers, officers of the army 
and nvLYj, and foreign representatives. He may recom- 
mend laws and other measures to Congress, may convene 
Congress in extraordinary session, and, upon a disagree- 
ment between the Senate and the House as to the time 
of adjournment, he may adjourn them to such time as 
he deems proper. He may veto the bills passed by Con- 
gress, but Congress may by a two-thirds vote pass them 
over his veto. It is his duty to receive all representatives 
of foreign governments, and to see that the laws of the 
United States are faithfully executed. 

This comprises the entire power of the President of 
the United States. You will have observed that there 
is a potential power greater than his in every function 
of government save the pardoning of criminals, and the 
enforcement of the laws. This latter is the most im- 
portant function of the President, and the one upon 
which, more than all executive duties, depends the life 
and happiness of the citizen, the safety of his property, 
and the perpetuity of the government. The Congress 
makes the laws, the Court interprets them, but if the 
Executive fails to enforce them, the government fails, 
property rights are lost, liberty perishes, and anarchy 
takes the place of order. It is in this respect that we 
know most about the Executive Department of our gov- 
ernment — about the President. For the discharge of 
this function the Executive Department is divided into 
nine subdivisions, each is presided over, and its work 
generally supervised and directed by a Cabinet Officer. 
These Cabinet Officers are selected by the President, and 
are responsible, not to the people, but to the President 
for a faithful discharge of their duty. The President 
alone is responsible to the people for the faithful ad- 
ministration of every branch of the Executive Depart- 



9 

ment; but, as the people elect a President every four 
years, we can have bad government but a short time if 
the people are alive to their civic duties. Here again 
is to be found the wise potential power of Congress. 
The President or any of his Cabinet members, or 
any Judge of the United States can be removed if guilty 
of treason, bribery, or other high crimes and misde- 
meanors on conviction in an impeachment proceeding. 
Under the Constitution the House of Representatives 
has the sole power of impeachment. 



The Judicial Department. 

Having considered briefly the Legislative and the 
Executive, we come next to the last of the three de- 
partments of government in the order in which they are 
named in the Constitution. 

In the language of the Constitution 'The Judicial 
power of the United States shall be vested in one Su- 
preme Court and such inferior courts as Congress may 
from time to time ordain and establish." This language 
is followed by what all thoughtful writers have found 
the wisest provision in our Constitution, and the one 
upon which has depended, and forever must depend the 
safety of life and property, and the preservation of our 
institutions. It is that the Judges of the Supreme 
Court and of all inferior Courts shall hold their ofRce 
during good behavior, and that their salaries shall not 
be diminished during their continuance in oflfice; thus 
bringing that department of government which has the 
last say on every important matter, as far as human 
beings can be brought, above and beyond all sordid in- 
fluence. The only remaining thing that the Constitu- 
tion does with reference to the Judicial Department of 
the government is to define the judicial power of the 
United States, and fix the metes and bounds of the 
jurisdiction of the United States Courts. The Constitu- 



10 

tion provides that the Judicial ijower shall extend to 
all cases arising under the Constitution or the laws of 
the United States. This necessarily involves the duty of 
construing the Constitution and setting aside all laws of 
Congress and of State Legislatures that may be in con- 
flict therewith. This is a feature in our government that 
is unique and renders it different from any other gov- 
ernment that ever existed. While the Constitution gives 
the greatest power to Congress, and in almost all re- 
spects leaves with it the potential power, it places the 
Supreme Court on perpetual guard over the Constitution. 
It will be seen from this brief review that our Con- 
stitution provides but the foundation and framework 
of governmental structure, leaving all detail to the 
people, through Congress, as from time to time may be 
required by changing conditions. So profound was the 
work of those who laid that foundation and erected that 
framework that it consists of principles as unchanging 
as human nature, and any departure from them utterly 
changes our form of government. 



WHEREIN THE GOVERNMENT HAS FAILED AND SUCCEEDED. 

As I have read the history of my country, both on 
its written pages and in almost forty years of observa- 
tion of its workings, I am convinced that the fear of the 
people that caused their hesitancy in the formation of 
the government was well grounded. It was the executive 
power which they feared. Of the three co-ordinate 
branches of the government, the one that has proven 
least successful in the full discharge of the functions 
devolving upon it, is the Executive. It is the depart- 
ment, too, that has shown the most inclination to de- 
part from its true functions and usurp or control those 
of the other departments. Had the Executive Depart- 
ment adhered as closely to its constitutional preroga- 
tives and duties as has the Congress and the Courts; 



11 

had the laws been enforced as faithfully, as intelligently, 
and as impartially as they have been in the main sound 
and wise, or as they have been truly and impartially 
interpreted, our government would have far more nearly 
realized the ideal of the founders. The enforcement of 
the law, which, as I have pointed out is the one im- 
portant function of government left by the Constitution 
solely to the Executive, is the respect in which our 
government has most signally failed. It is true that it 
is the most difficult duty and the one which presents 
the most temptations to neglect. Our Executive, with 
his thousands of subordinates, has uniformly looked for- 
ward to the coming election, and he and they would 
be more than human if they were not, to some extent, 
influenced in the discharge of their duty by this outlook. 
Upon the ground of human nature, we must extenuate 
this fault, grievous though it is, for the circumstance 
out of which it grows ever has been, and ever will be, 
the weakness, while it is at the same time the strength, 
of our government. 

There is another respect in which the Executive De- 
partment has frequently, though not probably uniform- 
ly, failed; for which there is no excuse or extenuating 
circumstance. That is, in not confining its activities to 
its constitutional duties. Few men have held legislative 
or judicial position under the Federal Government who 
have not felt the pressure of executive influence. Such 
pressure, when exerted, is usurpation; it is unpatriotic, 
and comes near to the border line of malfeasance. In 
so far as a legislator or judge yields to this pressure, he 
is unworthy; to resist it stamps him as a man of heroic 
mold, and in one respect at least, and a very important 
one, fits him for the discharge of high public duty. 

The Legislative Department comes direct from the 
people. Every two years the entire House of Kepre- 
sentatives and one-third of the Senate come to their 
duties with the people's mandate fresh in their minds. 
In the main. Congress has responded with wonderful 



12 

alacrity to popular opinion. It has exercised the peo- 
ple's power with wisdom and courage. Our laws have 
quite generally been the concrete and refined expression 
of popular will, and they have been quite generally 
sound, temperate, and wise. As the holder of the purse 
strings, Congress has been a faithful steward. If the 
Executive Department had been as honest and as care- 
ful in the expenditure of public money as Congress has 
been in its appropriation, we would have little occasion 
to complain of extravagance or corruption. It is true 
that no money can be expended until it is first appro- 
priated by Congress, but for its information as to the 
need of the appropriation, Congress must depend upon 
the Executive Department, and the details of the ex- 
penditures after the appropriation is made, in all the 
vast fields of government activity, must of necessity be 
looked after and attended to by the Executive Depart- 
ment. While I think the thoughtful student of our 
country's history will conclude that Congress has, tak- 
ing the years together, performed with fidelity and wis- 
dom the legislative or parliamentary function of the 
American Eepublic, it is in our Judiciary that we find 
the highest fulfillment of the loftiest hopes of the vota- 
ries of Democracy. Edmund Burke, the most profound 
of English statesmen, has said, "Whatever is supreme 
in a state ought to have as much as possible its judi- 
cial authority so constituted as not only to depend upon 
it, but in some sort to balance it. It ought to give 
security to its justice against its power. It ought to 
make its Jurisdiction as it were something exterior to 
the state." We have come nearer than any other nation 
ever has to realizing Burke's ideal, perhaps as near as a 
republic can or ought to come. Our judicial system 
does give security to justice against power; but its juris- 
diction is not exterior to the state. As I have pointed 
out, the people through Congress can control that juris- 
diction; but its jurisdiction and the Court, when once 
appointed, are completely separated from the Executive 



13 

power. All thoughtful students of our institutions have 
expressed the most profound admiration for the man- 
ner in which our Judiciary has been by the Constitution 
placed beyond the influence of the other departments of 
government. It is absolutely unique in that respect. 
The President can exercise no more power or influence 
over it than the humblest citizen. Congress can not 
diminish the salary. The tenure and the independence 
of a United States Judge is dependent solely upon his 
own good conduct. De Tocqueville says that "A more 
imposing judicial power was never constituted by any 
people." Brice calls it "the living voice of the Constitu- 
tion."' Lord Brougham said of it: "The power of the 
judiciary to prevent either the state legislature or Con- 
gress from overstepping the limits of the Constitution 
is the very greatest refinement in social policy to which 
any state of circumstances has ever given rise, or to 
wliich any age has ever given birth." Webster, our 
greatest constitutional lawyer, called it : "The great 
practical expounder of the powers of the government. 
No conviction," he said, "is deeper in my mind than 
that the maintenance of the judicial power is essential 
and indispensable to the very l)eing of this government. 
The Constitution without it would be no Constitution — 
the government, no government. I am deeply sensible, 
too, and, as I think every man must be whose eyes 
have been open to what has passed around him for the 
last twenty years, that the judicial power is the pro- 
tecting power of the government. Its position is on the 
outer wall. From the very nature of things, and the 
frame of tlie Constitution, it forms the point at which 
our different systems of government meet in collision, 
when collision unhappily exists. By the absolute neces- 
sity of the case, the members of the Supreme Court be- 
come judges of the extent of constitutional power. They 
are, if I may so call them, the great arbitrators between 
contending sovereignties." Mr. Carson, in his author- 
ized history of the Supreme Court places upon the 



14 

reverse side of the title page the splendid tribute of 
Mr. Horace Binney, a distinguished citizen of Philadel- 
phia, who said: "It is the august representative of the 
wisdom and justice and conscience of the whole people, 
in the exposition of their constitution and laws. It is the 
peaceful and venerable arbitrator between the citizens 
in all questions touching the extent and sway of Con- 
stitutional power. It is the great moral substitute for 
force in controversies between the people, the States, 
and the Union." 

While the judicial power, the jurisdiction of the 
Court, and the tenure of the Judges as fixed by the 
Constitution has been the important factor, the high 
character and ability of the personnel of the Court, 
particularly in the early day of the Republic, has been 
a powerful influence in making the Judiciary the most 
successful of the three co-ordinate branches of our gov- 
ernment. From the administration of John Adams to 
that of Abraham Lincoln, for a period of sixty-three 
years, the great office of Chief Justice was filled by but 
two men. The former of these, John Marshall, who was 
Chief Justice for thirty-four years, in his long service 
exercised a more profound and beneficent influence in 
shaping our institutions than any other man in our 
history. He was a man whose character it has been 
said "is the most exquisite picture in all the receding 
light of the early days of the Republic." 

Thus I have briefly sketched the form of government 
Avhich constitutes the nation the men, whose graves we 
decorate to-day, died to save. De Tocqueville says of it: 
"The most profound minds of Greece and Rome were 
never able to reach the idea, at once so general and 
so simple, of the common likeness of men, of the com- 
mon birtliright of each to freedom." Gladstone said of 
our Constitution that it is "the most wonderful work 
ever struck off at a given time by the brain and purpose 
of man." And another distinguished and thoughtful 
foreigner has said that the American Republic has that 



15 

form of government "toward which, as by a law of fate, 
the rest of civilized mankind are forced to move, some 
with swifter, others with slower, but all with unhesi- 
tating feet." 

Saved through the awful tragedy of civil war, shall 
this nation perish through the selfishness of peace? Shall 
the dreadful picture of the "Deserted Village" be spread 
across the face of our fair land? 

"Trades proud empire hastes to swift decay, 
As ocean sweeps the labored mole away! 
While self-dependent power can time defy 
As rocks resist the billows and the sky." 

THE PEOPLE CONTROL. 

In this brief statement of governmental functions 
existing under the Constitution I have entirely failed of 
my purpose if it has not been made apparent that to-day, 
and every day since the adoption of the Constitution, 
the people have had absolute control of all the machinery 
of government. It is not the control of the mob, but 
the control of the fireside which the Constitution pro- 
vides for. Our government cannot be affected by lurid 
resolutions passed at Cooper Union, nor at an excited 
gathering in Nebraska. But whenever about the fire- 
side of the American home any great question is con- 
sidered deliberately, as it could only be considered in 
that citadel of political power, the result of that delibera- 
tion will find voice in the ballot box, and every depart- 
ment of government will respond as promptly and as 
surely as nature responds to the genial influence of 
spring. Those who seek a speedier metliod know not 
what they do. Righteousness abides not in passion and 
in prejudice, and he who sows the wind must surely 
reap the whirlwind. No substantial reform was ever 
wrought by the hurricane or the cyclone — their power 
is destructive; not constructive. From the dawn of 
civilization every reform has moved with slow and de- 



16 

liberate purpose. It was two hundred and ninety-eight 
years from King Alfred to King John; but the leaven 
of liberty was working all those years and there came 
the great Charter of England. It was five hundred and 
sixty-six years from Runnymede to Yorktown, and the 
American Republic was born of the travail of these years. 
We are living in an impatient age; but if we would 
preserve our liberties, if we would preserve the great 
underlying principles of poi)ular government, we will 
hesitate long before we consent to any change in the 
scheme of government which the Constitution creates. 
It is worse than folly to say that under that form of 
government everything goes right; that the people have 
not to-day a cause of complaint. They have — and a 
grievous one. But, can we not, by the slow and orderly 
working of present government machinery, arrive at a 
remedy far more effectual than by any of the methods 
for speedy action that have been proposed? The people 
have it in their power to do so without changing tlieir 
machinery whenever they determine what they want 
to do. 



EQUALITY OF OPPORTUNITY. 

That all men are created free and equal is the doc- 
trine of the Declaration of Independence. This is fre- 
quently ridiculed by those who take but a superficial 
view of that dogma; but to those who look to the true 
meaning of these words and find in them the thought 
that all men come from their Creator with the right to 
freedom and the right to an equal opportunity in life, 
it is an eternal truth. Has the form of government 
created by the Constitution produced that condition in 
the American Republic? Every child born under the 
American flag unquestionably inherits the largest meas- 
ure of freedom that is consistent with organized society. 
But, does every man under the flag have an equal oppor- 
tunity in life, is a question not so easily answered. 



17 

For more than thirty years there has been a growing 
belief that he does not, until that belief has become a 
conviction that has produced an almost universal un- 
rest, and, in some way, the government is lield responsi- 
ble for this condition. That is, it is quite generally be- 
lieved that those entrusted with power have either, by 
what they have done or what they have failed to do, 
brought about this condition ; and I fear we are too prone 
from this premise to jump to the conclusion that this 
is the fault of the scheme or system of government. 
Those who have most carefully analyzed present day 
conditions I believe quite generally reach the conclu- 
sion that tlirough our laws, their interpretation or their 
administration, special privileges have been granted to 
the few not enjoyed by the many, and thus tlie guaranty 
of equal opportunity has been violated, and that equal 
opportunity no longer exists. With their conclusions 
I am not disposed to find fault; but to undertake to 
remedy a political condition, without accurately ascer- 
taining its cause, is folly. 



THE TARIFF. 

There are a great many very respectable and intelli- 
gent men who lay this condition entirely to our tariff 
laws. The fact, however, that the condition has come 
into existence within the last forty years, and tlmt a 
protective tariff was the first law passed by the first 
American Congress, and that high protection has been 
our national policy from the beginning, tends to discredit 
this diagnosis. I would not be understood by this as 
believing that our tariff laws have always been just 
or right. They have not, and have sometimes been 
inexcusable. But, from them have sprung to a very 
limited extent, if at all, the inequality of opportunity 
which furnishes so just a ground of complaint. I 
recently saw it stated that fifty years ago there were 
but twenty-seven rich men in the City of New York : the 



18 

richest of these was worth six millions, and but a few 
of the others were worth to exceed a million, their 
combined wealth being less than one-half that of any 
one of a dozen men in that metropolis now. Yet at that 
time we had been under a protective tariff for seventy 
years. In the State where I was born and brought up, 
one of the most prosperous in the middle West, there 
were but two men forty years ago who were rated as 
worth a million dollars. Within the last five years a 
citizen of that State died whose estate was reported 
to amount to fifty-six millions of dollars. 



INEQUALITY OF OPPORTUNITY AND CONCENTRATION OF 
WEALTH CORRELATED. 

There is no political economist but believes that the 
inequality of opportunity and the rapidity with which in 
the last half century the wealth of the world has 
been concentrated in a few hands are correlated. It 
is this condition that has brought about all of the 
ephemeral political movements that have flourished with 
such spasmodic hysteria, from the Greenback and Free 
Silver Movements, to the Recall and Referendum. The 
Granger Movement, the Greenback and the Free Silver 
Agitation, the Populist Party, the War against the Boss 
in Politics, the Election Reforms, the Recall and the 
Referendum, were and are, all of them, attempts on the 
part of those who advocate them, who believe in them, 
to alleviate the condition of the great mass of the people. 
All of these political movements have, it seems to me, as 
I have watched them through the years that they have 
flourished, simply scratched the surface of things and 
have not gone deep enough to find the source. It was 
apparent that the great mass of people did not have 
their share in the country's wealth, nor even in the 
wealth that their industry and their energy produced. 
Hence it has at various times been proposed to print 
more greenbacks, coin more silver, organize the masses 



19 

against the classes, drive the boss out of politics, bring 
tlie Government nearer to the people — all for the pur- 
pose of relieving an evil condition that was perfectly 
apparent but without, as I believe, fully understanding, 
or at least appreciating, the cause. 

We have learned that to increase the volume of 
money without increasing its value simply decreases its 
purcliasing power and increases, rather than relieves our 
trouble. We have learned, I hope, that class hatred 
can serve no other purpose than to undermine social 
order, destroy domestic happiness, and lead eventually 
to anarchy and revolution. We have learned — or, if we 
have not, w^e will before we are many years older — 
that when w^e drive one boss out of politics we let 
another in, and political conditions are but little, if 
any, improved, and if at all for but a brief season. 



INITIATIVE AND REFERENDUM. 

We are now told by a certain class of thoughtful 
men that the initiative and referendum is the remedy 
for our troubles, and by others, not so thoughtful, that 
to rid ourselves of our political troubles we must aban- 
don the representative democracy created by the Con- 
stitution, and change our form of government to a pure 
democracy, by abandoning party government, surrender- 
ing all tlie checks and balances of representative dem- 
ocracy, and permit the people, without deliberation, to 
settle all questions pertaining to society. For this it is 
my deliberate judgment is what the primary election, 
the direct election of Senators, and the recall, l)efore the 
expiration of their terms, of public officers guilty of no 
offense amounts to. The principal objection in my judg- 
ment to the initiative and referendum is that it is an 
impractical and unworkable form of what we already 
have in a practical and workable way. The initiative, 
as I understand it, is that the people shall by some 
method not yet clearly thought out, take the initiative 



20 

in legislation. This they may do now in the most 
practical way by making such legislation an issue in the 
election of legislators and congressmen. The referen- 
dum, as I understand it, is a method by which laws after 
enactment by a legislative body shall be submitted to 
the people at a general or special election, and not be- 
come operative until approved by a majority vote of 
the people. The objection to this is that it is cum- 
bersome and unnecessary. The people have neither the 
time nor the inclination to examine the technicalities 
of an enactment sufficiently to understand it. The 
theory of our government is that they delegate to repre- 
sentatives this duty and labor. It is unnecessary, be- 
cause the history of our government shows that legisla- 
tors respond quickly to the will of the people when they 
make that will known; and the people can, whenever 
tliey are sufficiently interested, secure the passage or re- 
peal of any law wliich they approve or condemn, by the 
very simple process of making their wish knoAvn by 
electing representatives in harmony with their will. 
It takes neither great knowledge nor vivid imagination 
to see that, except in very small communities, and upon 
questions of purely local interest, direct legislation is 
impossible. 

PRIMARY ELECTION. 

There is now a very general demand for a general 
Ijrimary election. That is, the selection by popular vote 
of all candidates to be voted for at the general election. 
Tliis demand is so almost universal that few men engaged 
in active politics dare oppose it, whatever may be their 
convictions. I believe it is ephemeral. More surely than 
any one of the fashionable political reforms of the day 
will it, when carried to its logical conclusion, be de- 
structive of representative democracy; and I do not 
believe the people are yet ready to change their form 
of government. To me there are several very serious 
objections to it. First, it affords a splendid field for 



21 

the demagogue. Second, the element of deliberation that 
is alforded by the convention system is in it entirely 
lacking. Men have no opportunity of conferring together 
and, through consultation, reaching if possible a wise 
conclusion as to who is the best man to place in nomi- 
nation for this or that oflOice. It is as if the people 
undertook, without the intervention of the legislature or 
Congress to adopt laws for their government. The 
merest tyro can see that in a community composed of 
more than a hundred people this would be impossible. 
Third, the primary election system, once generally 
adopted, will deprive every one but the very rich, and 
an occasional blatant demagogue, from holding public 
office. I scarcely believe we want to turn our govern- 
ment over entirel}^ to this class. At a primary election 
a man must depend entirely upon his own efforts. He 
has no political endorsement, no political organization 
to help him, and the best-advertised man is almost cer- 
tain to ^^'in. Advertising costs money — it costs a great 
deal of money. In a large constituency no man can 
reach either with his hand or his voice any large pro- 
portion of the voters. The system therefore gives in my 
judgment an undue influence to advertisement in every 
form. A very few men have the knack of getting a great 
deal of free advertising, but the most of men have to 
pay for it; and, while there are exceptions, the most of 
publications want to be paid for it, whether it is adver- 
tising an automobile, a patent medicine, or a candidate 
for office. So, as surely as "the longest pole knocks the 
persimmon," so the longest purse, under this system, 
will get the office in the majority of instances. If that 
purse is the candidate's own it is bad enough; but not 
half so bad as if it is provided by those who seek to 
benefit through his administration of the office he seeks. 
For, Avhile there is more altruism in politics than in 
any other field of human endeavor, with the possible 
exception of religion, it seldom takes the form of finan- 
cial aid. Money is never altruistic. The fourth objee- 



22 

tion, and the one most serious, is tbat it destroys 
political organization. No system has yet been devised 
that will prevent one party from influencing the nomi- 
nation of its adversaries, and thereby weakening its 
efforts at the general election. A democratic form of 
government is essentially a party government. That is, 
people unite themselves in political parties, compromise 
their differences, and, through the party convention, give 
expression to their beliefs as to legislation and adminis- 
tration. The members of the party in each small political 
subdivision select men to represent them as delegates 
in convention, there to harmonize minor differences and 
select men to go before the people at a general election 
as representatives of their aggregate views as to political 
policy, local. State or National. Carr^^ the primary 
election to its logical conclusion, to which it already 
has been carried in some States, and party lines are 
entirely broken down and political parties destroyed. 
It amounts to two elections, in neither of which does 
any candidate represent any set of principles to which 
any body of the electorate has given deliberate approval; 
but represents only himself, and, after elected, may in- 
terpret the people's mandate as he pleases. Add to this 
the recall, and we have strife and turmoil as our daily 
diet, and order and repose have gone from us forever. 
If we do not wish to carry the primary election to the 
extent of destroying political parties, if we mean to 
preserve party government and keep the primary con- 
test within the party, then it is utterly unnecessary. 
I believe the members of a political party should have 
the very freest opportunity of deciding what shall be 
the party principles and who shall be the party candi- 
date, uninfluenced by the demagogue and uncoerced by 
the boss. This they can do under the convention system 
through which we have operated for almost a hundred 
years. The recent political history of a neighboring 
State affords proof of this far stronger than any mere 
statement or theory, hoAvever logical. There is no State 



23 

in the Union where party organization has been carried 
to a higher degree, or has been more arrogant, nor where 
the boss has had greater power, than in the State of 
New York; yet under the old convention system, and 
with the party organization and the party boss and sub- 
bosses in complete control, Flughes was twice nominated 
for Governor, unquestionably against the wish of the 
bosses, at least of those who had any sinister purpose 
in their political activity. He was nominated because 
the people, that is, the rank and file of the Republican 
Party, were for him and demanded it. Again, in the 
same State only two years ago, a superb political leader 
under the convention system, by appealing to the people, 
overthrew the bosses great and small, and gained com- 
plete control of the party convention. Whenever under 
the old system the people failed to control the affairs 
of our government, it was because they neglected their op- 
portunity, neglected their duty, and this will be the case 
under any system the wit of man can devise. 



THE RECALL. 

The fact that we frequently hear the same men urging 
a longer term for President and the recall of all public 
officers illustrates, not only the inconsistency, but the 
order-destroying tendency of some modern so-called re- 
forms. If we are to adopt the recall of public officers 
who have committed no offence, or at least who have 
not in some orderly proceeding been convicted of some 
offence, and give proper attention to our civic duties, we 
Avill have little time left for earning a living. With 
the exception of Judges and those occupying quasi-Judi- 
cial positions, the terms of all public officers are very 
short. In every political subdivision of our country, 
from the city ward and county township to the National 
Government, there is a provision for the removal of 
all public officers who are guilty of malfeasance or 
neglect of duty. This of course may only be done 



24 

after, in some orderly proceeding, they are ascertained 
to be guilty. Every person under our flag has the right 
when accused of an offence to a fair and impartial trial. 
I scarce believe we wish to make an exception of those 
whom we select to administer any of the functions of 
our government, City, State, or National. If we do not, 
the recall is unnecessary and mischievous. 

I make but little difference betAveen the recall of 
Judges and the recall of other public officials elected 
by the people. Fundamentally they are equally bad. I 
agree that we should not make a fetish of the judicial 
office. Like all other public officials. Judges are selected 
to perform the people's will, but to perform it in ac- 
cordance with rules which the people have adopted, not 
in accordance with the passing fancy or prejudice of 
some of the people, nor of all of the people, unless 
deliberately expressed by changing the rules. It is true 
that more than other public officials the Judge should 
be independent of all sordid, improper, or impulsive in- 
fluences. Upon his decisions hang the life, the liberty 
and the property of the people, and his decisions should 
always be his deliberate, unbiased, uninfluenced judg- 
ment. But this is true, only in a less degree, of all 
public officials. The Judge should never be permitted 
to think that he is something above and beyond the 
people whose work he does. It is true that the work 
he does for the people is more technical in character 
than that done by other public officers, and those un- 
trained in the legal profession are less able to under- 
stand the legal principles which may be involved in any 
given decision than they are the service rendered them 
by a legislative or executive officer. But this, so far as 
I know, is the only sound argument that may be made 
against the recall of Judges that may not be made 
against the recall generally. 



25 



CHANGING FORM OF GOVERNMENT, OR MACHINERY FOR AD- 
MINISTERING IT, AFFORDS NO REMEDY FOR EXISTING EVILS. 

I have endeavored to fairly consider all of the more 
generally discussed remedies for the condition which 
now unquestionably exists, that is, for the inequality of 
opportunity which has grown up under our flag. I be- 
lieve they are all a step backwards, and tend to destroy 
rather than to promote the safeguards of liberty. If, 
however, we should adopt any or all of the remedies I 
have discussed, revolutionary though they are, I am 
unable to see how they would remedy the evil. With 
the initiative and referendum in full operation, what 
law would we get that would change the situation? With 
the primary election and the recall of Judges and of 
all public officers, what administration or interpreta- 
tion of the laws would we have that we do not have 
now? Those who advocate these measures suggest none. 
The changing of the method by which laws are enacted, 
or the method of selecting officials or controlling them 
would not, in itself, afford a remedy. 



THE SPECIAL PRIVILEGE WHICH CREATES INEQUALITY OP 

OPPORTUNITY. 

I am profoundly convinced that this inequality of 
opportunity results from special privileges that have 
been given by law to the few, which the many do not 
and can not enjoy — by the laws, not, however, of the 
National Government, but of many of the States; and 
the people can, whenever they have a mind to do so, 
correct the evil, and that without making the slightest 
change in our form of government or the method by 
which public business is attended to. The responsibility 
for doing this is with the people, and with none more 
than with the people of New Jersey. 



26 



THE CORPOKATION LAWS OF THE STATES. 

At the time of which I spoke a moment ago, when 
there were but twenty-seven rich men in the City of 
New York, the commerce of New York and of the 
country was clone by the individual. If that were true 
to-day, the number of millionaires in that City and in 
the country would have increased only in proportion 
and ratio with the increase in population and general 
development of National resources. We all know this 
is not the case. The special privilege which has brought 
about the concentration of wealth in the hands of a few 
and consequent inequality of opportunity, is that af- 
forded by the corporation laws of many of the States, 
and in this New Jersey has been the chief offender. 
But in the wave of reform of which we have heard so 
much in this State in the last few years, I have ob- 
served no tendency toward a reform of the corporation 
laws. These laws tend to create a commercial despotism 
more intolerable and more dangerous to liberty and 
happiness than any political despotism that ever flour- 
ished under the sun. I am not a corporation baiter. 
It is a most useful agency of commerce, and in the 
present day an absolutely necessary one. But it is 
also susceptible of development that will make it a 
danger to the state — in fact it has already become so. 
There are many businesses that can be carried on only 
by large aggregations of capital, and this is best effected 
by means of the joint stock company or corporation. 
The corporation is a fictitious being, that is, it is a 
creation of the law. Before the special legislation of 
the various states enlarged it, the corporation was so 
confined by the common lav/ and its interpretation by 
the Courts as to afford every opportunity for the con- 
duct of such large undertakings as required this medium 
of commercial intercourse, but did not permit it to 
create a monopoly, or trust as we now call it, and 



27 

become a menace to the state and the people. To-day, 
under the statute law of forty States, corporations may 
be organized to carry on any kind of lawful business. 
In forty-one States there is no limit placed upon the 
capital stock of a corporation. In twenty-four States 
perpetual charters are permitted by law. In seventeen 
States the merger or consolidation of corporations is 
specially provided for by law, and in only two States 
is it prohibited. In only two States is the holding of 
stock by a corporation in anotlier corporation pro- 
hibited, and in nineteen States this power is expressly 
given. In thirty-nine States tlie statute law makes no 
provision that the capital stock of a corporation or 
any part of it shall be paid in money, and in twenty-one 
States charters are granted to corporations without re- 
quiring them to hold their meetings within the States, 
or requiring that the directors or officers shall be resi- 
dents of the State.* Everj^ one of these provisions of 
State laws constitutes a special privilege granted to those 
to whom cliarters are issued, the effect of which upon 
society is not yet understood, and in my humble judgment 
can not be overestimated. These State laws did not 
emanate from the people, but in almost every instance 
were enacted, sometimes througli the corrupt, and ahvays 
through the undue influence of those interested. That 
I may not be misunderstood, nearly all of the various 
provisions in tlie corporation laws to which I have 
referred were prepared by corporation lawyers In the 
interests of their clients who wanted to use them to 
exploit tlie people, either in the sale of stocks, or in 
securing the control of some line or all lines of busi- 
ness, and to be able to do this with the minimum of 
risk to themselves. I think it fair to say that in the 
large majority of instances they were procured, not by 
corrupt means, but from legislatures the members of 
which liad but little or no understanding of the far- 

* Address of Hon. Edgar H. Farrar, President American Bar Asso- 
ciation, August 30, 1911. 



28 

reaching effect of the laws they enacted. It is under 
the fostering and sheltering care of these laws, and not 
as a result of natural development, that organization 
and consolidation in business has become the watch- 
word of the hour. It is easy to see how, under these 
laws, corporations may be organized that will become 
stronger than the government. In fact there are cor- 
porations and combinations of corporations in existence 
to-day that exercise a far greater influence over the daily 
lives, the happiness and prosperity of the people, than 
does the government itself. And yet, with this tlireaten- 
ing danger before us, we rest supinely oblivious to it, 
while we excite ourselves about dangerous or unimport- 
ant changes in our form of government, or the method 
of transacting public business; and yet, under the pres- 
ent form of government and the present machinery for 
transacting public business, the people have it in their 
power to destroy this special privilege which is gnaw- 
ing at the vitals of national life. The trouble is that 
under these laws there have come to be great vested 
interests that are widespread among the people. 



A FEDERAL PROBLEM. 

The state legislatures are the theaters in which this 
reform should be enacted; but this will never be. Such 
would require the concordant action of the States. It 
was the impossibility of this that brought about the 
formation of the Federal Union, and there is certainly 
no more probability of forty-eight States acting in har- 
mony than there was of the thirteen Colonies. But 
under the Commerce Clause of the Constitution, the 
Federal Government can, and I believe eventually will, 
remedy this evil. We have on the Federal Statute Books 
to-day a law which denounces as unlawful the acts of 
thousands of corporations whose every act is authorized 
by the laws of the States creating them. Thus, through 
the operation of our dual governments, we have laws 



29 

that are equivalent to selling a man burglars' tools, and 
then punishing him for using them. This is a problem 
with which the Federal Government must deal, and must 
deal b}^ constructive legislation. The Anti-Trust Law 
as a remedial and penal statute is as near perfect as the 
wit of man can devise; but it pretends only to destroy; 
it does not reach the source but deals only with the 
condition. 



SOCIALISM. 

The most minute study of the history of the commerce 
of the world, from the Phoenician traders upon the 
Mediterranean down to the present hour, reveals but two 
forces that can control that greed and ambition which 
are the great moving power in commerce. The one is 
law, and the other is competition. To control it by law 
leads to socialism. The theories of socialism are as 
many as the individuals that hold them. One thing, 
however, is common to them all. It is, that the dis- 
tribution of the proceeds of labor is a governmental 
function. That is, that the individual is nothing; that 
the community is everything; and that whatever wealth 
is produced by the labor of the individual becomes the 
property of the community, to be distributed to all the 
individuals that compose the community by some au- 
thorized agency of the community. The regulation of 
interstate commerce by laws which, either in terms or 
through a governmental bureau, seek to establish and 
compel co-operation, leads therefore unerringly to so- 
cialism. Co-operation, except it have the sustaining 
power of the law, must prove a snare by which capital 
will more firmly fasten its hold upon labor, or will go 
the way of New Harmony and Brook Farm. To foster 
and control the trusts, therefore, if the control is to 
be effective, means to go deep into all interstate business, 
to regulate the capital stock, the wages of employees, 
and the profits. This would be effectually distributing 



30 

the proceeds of labor, and would logically lead us into 
socialism and change our form of government in fact, 
if not in name. Representative democracy is based upon 
individualism, and experience teaches that this can only 
exist where there is free and open competition. 



THE REMEDY. 

We must, however, and eventually we will by express 
Federal law, permit to engage in interstate commerce 
only such corporations as are prohibited from acquiring 
or owning the property or stock of another corporation; 
from having, as officers or directors, men who are officers 
or directors of other corporations engaged in the same 
or a similar line of business, from doing any business 
until their capital stock is paid in full in money or 
property of equivalent value; and prohibit them from 
entering into any contract or agreement with another 
corporation, copartnership, or individual which, directly 
or indirectly, interferes with free and open competition. 
When we do this we will have restored competition to 
the commerce of our country, which has been destroyed, 
not by the operation of the natural laws of trade, but 
by the stifling of those laws by the statutes of the States. 
This being done, we will have cut the leash that has so 
long held in check the operation of the economic law 
of supply and demand, and annulled the special privi- 
lege which has destroyed the equality of opportunity 
which all should enjoy under our flag. 

This will be done whenever the people are ready for 
it; but it can not be done without great disturbance 
of business, and this disturbance, of necessity, must reach 
the people. The stocks of the great industrial corpora- 
tions are scattered far and wide among the people whom 
they are exploiting, and the holders of these stocks will 
hesitate long before they will consent to a remedy that 
will save the nation at the expense of their incomes. 
The craftsmen of Ephesus opposed the Christian religion 



31 

upon the ground that it would destroy their business 
of making idols ; but that religion grew and spread, and 
the people no longer "bow down to wood and stone." 
We have gone far since that day, but human nature 
remains much the same, and mankind is still controlled 
to a considerable extent by selfish interest. But, through 
it all, I believe an inexorable law is at work that is 
moving the world upward and onward. Standing at the 
threshold of the heaviest responsibility ever assumed by 
mortal man, President Lincoln closed his first inaugural 
address with these immortal prophetic words: 

"The mystic chords of memory, stretching from every 
battlefield and patriot grave to every living heart and 
hearthstone all over this broad land, will yet swell the 
chorus of the Union, when again touched, as surely they 
will be, by the better angels of our nature." 

I believe this sentiment is as true to-day as it was 
in ISGl. I believe it applies with equal force to civic 
virtues and to military prowess. The sober, second 
thought of the American people can always be trusted, 
and a patriotic call to the discharge of the highest civic 
duties in defence of the form of government the fathers 
established will meet, I believe, as generous, if not 
as speedy a response as did the call to arms in defense 
of the Union in 1861 ; and the people will, whenever they 
appreciate the danger existing in the present crisis, 
sacrifice their personal interests for the preservation of 
the Nation which the men whose graves we decorate to- 
day gave u[) their all to save. 



